Tom Goldstein over at SCOTUSblog has a great piece reflecting on the recent Supreme Court term and the future of that body. Even if Sotomayor is confirmed (as is probable), Goldstein sees the court continuing a rightward trend through Obama's second term (which seems likely, if not probable).

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn't the Court's principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I'm right about the direction of the case law, the Court's methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.

He goes on to say:

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

It isn't until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court's ideology.  Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now).  Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left.  Over the course of eight years, it is possible to take enough measured steps to walk a marathon.

That isn't to say that the conservatives have the votes to undo the legacy of the Warren Court.  The contrast between the five-to-four Caperton (constitutionalizing a right in extreme cases against decisions by a judge in favor of a supporter) and Osborne (rejecting a claimed due process right to DNA testing) demonstrates that Justice Kennedy is far from committed to the project.  So too do his narrower opinion in Parents Involved and his refusal to overrule the exclusionary rule.  Also, he will not retreat from providing a fifth vote on certain questions of executive power, the death penalty (execution of minors and the mentally retarded), and gay rights.

But Justice Kennedy is not the swing vote of Justice O'Connor, and on questions like race, religion, abortion, and campaign finance I think he is ready and willing to continue to move the law.  He voted with the left in five 5-4 decisions this Term.  But in every case that I view as genuinely important and ideologically freighted, he voted with the right:  Ricci, Iqbal, Bartlett, Osborne, Penn Plaza, Gross, Herring, Flores, and Montejo.  Caperton is the only arguable counter-example.

I have just a few thoughts on this.

First, you should read the whole piece. It's very thoughtful and informative.

Second, while I really find the SCOTUS fascinating (and important) as the last stop in our system of checks and balances, I find it becoming too political for my taste. The right selectes and confirms right wing Justices, same for the left. Left wing justices decide their retirement plans based on political timing, same for the right. And you can usually predict with high accuracy how the court will rule before the first oral argument is made.

Finally, things being as they are, the makeup of the court is a big deal in presidential elections. My guess is that in 2012 Scalia (less likely Kennedy) with throw a few winks and nods toward retirement, throwing the right into a fit. This seems to me like a boon to the religious right who have suffered mightily among recent scandals and could also make Obama more cautious on his second-term appointments. 

Now that a guy has opened fire at the Holocaust Museum killing a security guard and another guy has killed an abortion doctor, one must wonder whether this is a sign of things to come. The latter says yes, it is, and he knows so.

The man accused of killing a high-profile abortion doctor said from his jail cell Sunday that similar violence was planned across the nation for as long as the procedure remained legal. When asked whether his statement was referring to another shooting, Roeder refused to elaborate. It was not clear whether Roeder knew of any impending violence. Law enforcement authorities said they did not know whether the threat was credible.

Maybe I'm crazy, but shouldn't we, as Americans, do everything in our power to keep the homeland safe. Dick Cheney says so:

From the beginning of the program, there was only one focused and all-important purpose. We sought, and we in fact obtained, specific information on terrorist plans. It is much closer to the truth that terrorists hate this country precisely because of the values we profess and seek to live by, not by some alleged failure to do so. Nor are terrorists or those who see them as victims exactly the best judges of America's moral standards, one way or the other.

Plus, according to the Bybee memo, it isn't really torture:

The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering". Even if one were to parse the stature more "finely" to attempt to treat suffering as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

So we can waterboard terrorists who we think may have information on future attacks, but we can't waterboard terrorists who openly admits knowledge of future attacks? Either waterboarding is a legal tool when used to keep the country safe from attack or it isn't.

At the very least can't we deprive Roeder and Von Brunn of sleep and rations? Maybe send them to Gitmo because our prisons can't handle them?

You have probably read the term "green shoots" as related to the economy. This, of course, is a term that means the first signs of growth after seeding. What is making economists nervous is the fact that many key growth indicators are either mixed or unstable.

I refer to this situation as "brown shoots." You can seed and fertilize all you like, but heatwaves and droughts can still wreak havoc on your lawn. The grass is there, but the tint is an ugly brown. Even as it grows, it isn't pretty.

This is what I see happening to the economy right now. Obama, the Fed, etc, have done everything they can (short of taking extreme measures that could rip the country apart) but the reults remain tenuous. Let me tell a personal story that I think best reflects the situation.

Two things happened to me recently: the economy tanked and my student loans capitalized. I reacted in the usual way. First, I made financial cutbacks. Second, I began to pay down debt. Third, I began to pay down debt.

These things worked well for a while. The cutbacks and savings actually offset the debt reduction to the point that I could spend a little more. Rent a movie here, eat out there. No big ticket items, of course, but spending nonetheless.

Then my son lost his job. So I dipped into the savings to keep his rent and utilities paid until he found a new job. At the same time the little spending that I did dried up. After a few months he got back on his feet and things went back to normal, not the old normal, but the post-recession normal.

Shortly thereafter my daughter lost her home to foreclosure. Again, I dipped into the savings until she could, as a low-income worker, get into HUD-based housing. It didn't take long to find out that HUD is massively under-funded and so I had to borrow in order to get a roof over her head, as well as her three children.

So now I find myself back to square one. The savings are exhausted, all of the repaid debt has been replaced with more debt, and all disposable spending is slashed.

My gut tells me that the situation is the same across the country. It may not be helping out kids. It may be a job loss, or a health care emergency, or a foreclosure. Our best case scenario, at least for the short-term, may be two steps forward and one step back at best, the reverse at worst.

At the very least, this may help explain the current mixed indicators in the economy as a whole.  

Back when I was young I would go cross country in the summer in my grandpa's 18 wheeler. I've been through well over half the states in the union but never really got to spend time in many of them. Recently, a fellow member of the Cafe Chat Room encouraged me to share some of the stories here.

Without further ado:

Many may know the famous CCR song Lodi. Well, I was actually stuck in a Lodi motel and missed the first three days of school back in North Carolina. To my father's chagrin, grandpa decided a trip to Oregon was necessary before we headed back east.

Speaking of California, one year the AC broke down from Phoenix to LA. Grandpa, of course, could only get the AC fixed by his AC guy in LA. That's 400 miles of  pure heat, the kind of heat that takes your breath away.

Alcatraz is visible from the Oakland Bay Bridge. Not so much from a picture taken on a disposable camera at 90 miles an hour.

The casinos in Laughlin, Nevada has great arcades for kids.

The Mojave desert is very, very windy, especially at night.

Louisina has very bumpy roads. Reading Mad magazine from the sleeper is next to impossible.

Driving through Texas takes a long, long, long, long time.

Don't play with the CB radio.

If you can't eat all of your Shish-Kabob at the Sizzler, don't order it.

The best truck stops are the ones that have gift shops, especially if you can get grandma by herself with the cash. I prefer T/A and Petro. Flying J has the largest sodas known to man, and the smiley-face station, while offering cheap diesel, is quite dull.

Dwight Yoakam sang about it, but I literally walked the streets of Bakersfield to buy $100 worth of scratch off lottery tickets.

If possible, always stay at a Best Western.

There is nothing to do in Oklahoma.

Flagstaff has good showers, until you see your grandpa wash his ass with a cloth because there is only one free shower per fill-up.

Weigh stations are a bummer.

Don't slow down, go around.

Florida isn't all it's cracked up to be.

Log books are fun for kids, not so much for drivers.

Don't put quarters into those stuffed animal claw machines, or the vibrating bed.

If you put a penny on a railroad track, it looks very cool after the train runs over it. But you need to put down at least five to get one back.

Don't put pennies on the railroad tracks.

Even if your grandparents saw you nude as a baby, it doesn't make it easier to shower in front of them in Flagstaff when you are 12, regardless of what they say.

No, you can't drive.

No, you should have peed earlier.

No, we're sleeping in the truck tonight. You spend the motel money at the Petro gift shop.

Seeing your grandparents drunk on Coors and wine coolers in a Lodi motel is almost as bad as seeing grandpa wash his ass with a cloth in Flagstaff.

Always get the buffet.

The white pills are vitamins.

So there you have it. My experience on the open road with grandpa summed up in one post. I learned a lot. I know how to navigate. I know how to make good time. I know how to be thrifty on a trip. And most of all, I know that truckers deserve full respect, but never to be one.

There has been much discussion over Atul Gawande's expose' on the health care costs in McAllen, Texas. Allow me to add some back-story.

Back in 2001 the factory I worked in for over a decade relocated to Reynosa, Mexico. A group of us were sent down to train our replacements. We stayed just across the border at, guess where, McAllen, TX. I was there for just over a month

On the heels of President Obama's choice of Sonia Sotomayor to replace David Souter in the US Supreme Court, this seems like a good time as any to bring up some criminal justice-related issues. More specifically, the current Court has not been kind in protecting the rights of those accused of committing a crime. Here are a few examples:

Arizona v. Johnson: Allows police to perform a stop-and-frisk search during a traffic stop whether or not the suspect has committed or is committing a crime.

Kansas v. Ventris: Allows testimony gathered in violation of the Sixth Amendment admissible at trial for the purpose of impeaching a witness.

Herring V. US: Allows illegally seized evidence to be presented as evidence at trial if the illegality was caused by police error.

And today, the New York Times reports this gem out of Michigan:

 The Supreme Court on Tuesday made it easier for the police and prosecutors to question suspects, lifting some restrictions on when defendants can be interrogated without their lawyers present.

 

In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case, which forbade the police from interrogating a defendant once he invoked his right to counsel at an arraignment or a similar proceeding.

 

In a nutshell, the old law held that if you had a lawyer on retainer or invoked your right to counsel the police could not question you any further even if you wanted to make a statement.

Some may say that this is common sense, that if a guy wants to talk to the police without his lawyer he should be able to. But there are a couple of things wrong with this argument:

First, a person that has retained or requested counsel must have done so for a reason. Any set of circumstances, from police coercion (which is illegal) to police deception (which is perfectly legal) could be used to cause the person to speak without counsel against his own interests.

Second, in the heat of the moment a person may make statements under duress. Police have all the incentive to use this fear, confusion, etc to extract a statement without counsel. Counsel is obligated to ensure that his client is capable of making a statement based on the client's interest.

Now, I will admit that there have been some good decisions related to criminal justice issues (Arizona v. Gant comes to mind). But criminal justice cases tend to fly under the radar while topics like abortion, religious expression, and gun rights get top billing.

Most people accept this fact. It's just people accused of crimes, after all. Remember, though, that the Constitution is like a sweater. You can only pick at it so much before it completely unravels. Also keep this in mind: you, too, could one day be accused of committing a crime and Amendments 4-6 become real important real fast.

In the current economy everyone is looking for ways to cut costs, including the criminal justice system. One very good idea floating around is the decriminalization of certain illegal narcotics. But while this may keep future citzens out of the penal system, there is an issue that can prevent currently incarcerated prisoners from returning.

Most people have heard the term "expungement," the process by which an offender's record will be erased after sentence compliance and a term of good behavior. What most people do not know is the the process is cumbersome and in many states not an option at all.

Let's say you live in my state, North Carolina. If you commit a crime when you are 18 (or 16-17 if tried as an adult, prosecutor's discretion), that crime is on your record for the rest of your life. When you are 90 years old with decades of work and public service with children and grandchildren, the record remains for all to see. And these are not just major crimes. Mismeanors and felonies alike, from vandalism to shoplifting, continue to hang over your head. Even a gubernatorial pardon does not clear the record.

Now imagine you have just gotten out of jail for writing a bad check because you came up short one month and your family needs groceries. You did the crime and the time. But for the rest of your life, on every job application, or in some cases credit and rental applications you fill out you must list this offense under penalty of perjury.

This scenario admittedly puts a better light on the offender than most cases. But when someone is released from jail or prison with no job, no credit, and no home, how can we expect anything less than massive recidivism? Even if the offender gets a minimum wage job, his chances of ever moving past that are slim because of this stigma.

Of course we need options in place to make the parole system better equipped to provide treatment and job placement rather than to act as 24/7 baby-sitters over adults. But that is just the first step.

Once an offender is released from incarceration and has paid all fines, restitution, etc, their record should be expunged after 1-3 years of clean living for misdemeanors and 5-7 years for felonies. There should also be a process for early expungement for exceptional cases, possibly tied to a set amount of community service.

Finally, I need to mention that expungement should mean full expungement. In some cases employers (or others) attempt to loophole the system by asking prospective employees to also list expunged offenses. This should be disallowed.

So the next time you hear your state representatives complaining that they are running out of ways to cut costs and stimulate the economy, send this idea along. It can simultaneously reduce jail and prison populations, extend the credit market, and give citizens the ability to get higher paying jobs thereby increasing consumer spending.

Now that summer is almost upon us, I am putting together my must-read list of books that are collecting dust on my bookshelf. Here is what I have so far:

Angels and Demons, Dan Brown

The Audacity of Hope, Barack Obama

American Lion, Jon Meacham

Heads in the Sand, Matthew Yglesias

The Great Derangement, Matt Taibbi

Nixonland, Rick Perlstein

So, is there anything I am missing here that I should add to my list? Is there one title that I should get to before the others? What's on your list?

I have blogged before about the silly argument that US prisons cannot handle terrorists (hint: they already do). But there is another issue here. Even if Congress can refuse to pay for closing GITMO and transferring these prisoners, I'm not sure they can block the actual transfer.

The way I see it, GITMO is a military base. The detainees are held by the US military. Therefore, as CIC, Obama could order them transferred to any military installation that he sees fit, sans any Congresssional approval.

This is already happening:

Meanwhile, an Obama administration official said that the administration plans to announce Thursday that a top al-Qaida suspect held at Guantanamo Bay will be sent to New York for trial.

Ahmed Ghailani would be the first Guantanamo detainee brought to the U.S., and the first to face trial in a civilian criminal court.

My guess is that Obama is playing a long game here. He lets Congress play NIMBY leading up to the mid-term elections. This keeps their constituents happy and prevents any seat losses over what is, in reality, a silly issue.

In the meantime the administration will quietly scale back the camp. A few detainees will be released, a few will be tried in US courts, a few in military tribunals. By 2010, Obama's set date to close the GITMO camp, it will have already outlived its usefulness with the Dem Congressional majority intact.

There has been a lot of silly talk lately about how US prisons are ill-equipped to handle GITMO detainees. This is demonstrably false on many levels, but a 2007 article about Colorado's Supermax facility caught my eye when I saw a familiar name: former US Attorney General Alberto Gonzales.

From CNN:

 

Visiting Supermax, the "Alcatraz of the Rockies," reveals nothing so much as an astonishing and eerie quiet.

It's not what one would expect of a place that houses 473 notorious terrorists, vicious murderers and violent, disruptive escape-prone inmates brought in from other federal penitentiaries.

I've visited noisy, boisterous state and federal prisons, where inmates scream for a visitor's attention or proclaim their innocence.

But at Supermax -- officially called "Administrative Maximum," or ADX -- everything is very tightly controlled, with nothing left to chance, so there is no particular sense of a threat, no feeling of vulnerability.

Prison officials also have been bugged by rumors that the penitentiary was not entirely safe and secure, and that the lack of adequate staffing and a perimeter fence were potential problems to the community.

Bureau officials insist allegations of inadequate security were fueled by corrections labor unions wanting more staffing, but complaints caught the attention of Attorney General Alberto Gonzales and Colorado Sens. Ken Salazar and Wayne Allard, all of whom visited.

In the end, it was agreed that a $10 million perimeter fence wasn't needed.

Bureau of Prisons officials stressed that 95 percent of the Supermax prisoners are the most violent, disruptive and escape-prone inmates from other federal prisons, and they were transferred to ADX to help control those other facilities. At ADX, every prisoner has his own 86-square-foot cell.

Despite the brutal nature and violent history of most of the inmates, not a single major assault against a corrections officer has occurred since the first inmates arrived in 1994.

And before you argue that these prisoners are less dangerous than the GITMO guys:

The handful of journalists allowed in were not allowed to see the headline-grabbing terrorists isolated under specially designed procedures. We didn't get a glimpse of Zacharias Moussaoui, Ramzi Yousef, Richard Reid, Theodore Kaczynski or Terry Nichols.

And apparently so as not to fuel inner terrorist fires, the newspapers from September 11 that will eventually reach the al Qaeda members and sympathizers imprisoned here will be altered. It will be 30 days before they finally have access to the 9/11 papers, and then they will find that all articles dealing with the anniversary or terrorism will have been excised.

So the next time your GOP buddy tells you that US prisons can't take the terrorists, refer them to Wayne Allard, Ken Salazar, and Alberto Gonzales, none of whom can be accused of being soft on crime.

This evening the wonderful, progressive website BlueNC hosted Democratic challenger for North Carolina Lieutentant Governor Dan Besse in a live blog forum.

Dan spent a couple of hours discussing topics like health care, transparency in government, climate change and the environement, and military affairs, as well as answering questions posed by BlueNC readers.

If you are a resident of North Carolina, or just interested in state politics, check out the full text of the blog here.

If you are as impressed as I think you will be, you can check out Dan’s website to volunteer, make a donation, or share with a friend.

Here are some highlights from the event:

On health care:

Improving access to health care in North Carolina is one of my top personal priorities. Serving as chair of the Health and Wellness Trust Fund Commission is one of the Lieutenant Governor's best openings to press that priority forward.

On higher education:

It means keeping tuition rates as low as possible, ensuring that grants and loans are availble for students who need them, and providing public service opportunities for as many students as possible as an alternative method of repaying student loans.

On government transparency:

I will cheerfully support expanding live internet coverage of the legislative process, both floor debates and committees.

On mental health disparity:

The mental health system crisis in our state is straightforward. A well-intended effort of mental health treatment reform was launched a few years back, to move patients out of full institutionalization and into community treatment programs whenever possible. Good in theory.Then it wasn't funded.

On electability:

The 2008 elections will channel an enormous reservoir of public disquiet over the direction our nation is taking. People want change. They're ready for a message calling for positive change, a government that will attend to their concerns, not the inside-the-beltway lobbies in Washington...or in Raleigh.

At the state level in NC, that's going to translate into a positive response to candidates who have real experience in public service outside the Raleigh beltway. Candidates who have taken their own public positions and worked on community problems as independently elected officials, walking the neighborhoods where they live. In short, candidates who wear work shoes, not wingtips.

On the environment:

this may be the most critical issue facing our state over the next 20 years.

A predicted effect of global warming for much our state is a drier climate. The current historic drought may well be merely a foretaste of future patterns, not a passing weather blip.

At the same time our demand for water is going up. Our state's population is projected to grow by 50% between 2000 and 2030--in effect placing numbers equivalent to the entire population of SC on top of the folks already here in NC.

We must do two things:

1) Protect the quality of our water supply.

2) Get smarter about how we use it.

On military affairs:

Our active service troops are inherently limited by the realities of military service in their ability to use the political process to speak up for themselves. As citizens who care about them, and who depend on their protection, we must speak up for them. Our National Guard and reserve personnel, and their families, also must have our active community support.

That includes telling Washington when it is not doing its duty to our troops and our veterans, and their families. Like now, in my opinion.

On why he's running:

It seems to be the perfect opportunity to take my combination of local and statewide, hands-on policy work experience, and put it to work on the needs I care most about: environmental stewardship, and equal opportunity for all.

With the current generation of statewide elected Democrats either running for governor or holding onto their current posts, the LG office is the premier chance to bring a fresh voice to Raleigh. And, looking at the demographic trends in our statewide electorate, I'm convinced that this is the year when a genuine progressive Democrat, coming out of a citizen-action tradition, can break through the glass ceiling into a statewide post.

Remember, the full text of the blog can be found here.

Thanks for listening.

Dan Besse for North Carolina Lieutenant Governor

www.danbesse2008.org

From Reuters

Campbell Soup Co posted a 7 percent decline in first-quarter profit on Monday, hurt by higher costs and lower U.S. soup sales, but stood by its full-year earnings forecast.

U.S. soup sales were held down by an exceptionally warm autumn, but Campbell said it expects the business to "deliver better performance as the (fiscal) year progresses."

No word yet on how this will effect those Chunky commercials that play throughout the NFL games.

NAFTA has been brought up in the recent debates to attack Hillary.

David Sirota has been a hero on the issue.

But sometimes things hit me really close to home. My factory was bought out by Ansell back in 1997.

This is how their website describes the acquisition:

1997 - Ansell solidifies its commitment to the glove industry with the purchase of Golden Needles Knitting, the largest glove knitting facility in the world. Combining Golden Needles' knitting capabilities with Ansell's dipping technology results in the launch of HyFlex® gloves, which offer unprecedented levels of comfort and cut resistance using KEVLAR technology. At the time, Golden Needles is the largest user of KEVLAR in the world in the glove industry.

Of course, those of us who worked there remember things differently.

We recall the initial layoff of 1/3 of the workforce. We recall the loss of our Christmas bonus. We recall moving from free insurance to preimums with less coverage. We recall the final layoff when they relocated operations to Mexico.

You would think I should be over it by now. But I still have to live in this town. I still have to talk to the broken-down friends and ride by the shuttered buildings.

While I am glad that NAFTA is back in the public eye, I must speak up and say that it is not some obscure political talking point.

NAFTA, and other lopsided trade agreements are all too real.

I leave you with this.

and how we currently suck at it...

From The Guardian

British troops feel 'devalued, angry' and are 'suffering from Iraq fatigue', according to the head of the army, who warns that Britain's military covenant is under strain.

In a stark assessment of the morale of British troops, General Sir Richard Dannatt warns that the pressures of waging two simultaneous campaigns in Iraq and Afghanistan are 'mortgaging the goodwill of our people'.

Dannatt's comments are made in his Staff Briefing Team Report for 2007, leaked to the Sunday Telegraph, in which he warns that the 'military covenant is clearly out of kilter'.

The chief of the general staff writes: 'We must strive to give individuals and units ample recuperation time between operations, but I do not underestimate how difficult this will be to achieve whilst undermanned and with less robust establishments than I would like.'

Referring to overstretch, the report warns: 'The tank of goodwill now runs on vapour; many experienced staff are talking of leaving'.

Call me a defeatist if you like, but this can't be good news for our Global War of Terror can it?

Greg's post over at The Horse really made me think.

While I love the idea of cross-spectrum debates, that really isn't journalism.

This feeds into the "Republicans say" and "Democrats say" style of reporting. Doesn't matter which side is being truthful, so long as they get a quote from each side.

Now, I'm a younger guy, but if the Republicans say that the surge is working, and the Democrats say that it isn't, I assume the media's job is to say "but here is the truth."

Our political system has become which tastes better, Coke or Pepsi. Whoever has the coolest ads wins the race.

The media is supposed to say yes, even though Coke tastes better, it is made from baby seal brains. Would that not change your opinion a bit?

Instead, we have one person saying Coke is made from baby seal brains, while the other side says it is not, and it ends there.

Note: I prefer Coke to Pepsi, and have no evidence that it is made from baby seal brains.